Purtill v. Covello

• Decision Date: 02 November 2022
• Docket Number: 2:22-cv-0199 KJM DB P
• Parties: CHRIS PURTILL, Petitioner, v. PATRICK COVELLO, Respondent.
• Court: U.S. District Court — Eastern District of California

CHRIS PURTILL, Petitioner, v. PATRICK COVELLO, Respondent.

No. 2:22-cv-0199 KJM DB P

United States District Court, E.D. California

November 2, 2022

FINDINGS AND RECOMMENDATIONS

DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his convictions for lewd and lascivious conduct on a child imposed by the Sacramento County Superior Court in 2017. Before the court are respondent's motion to dismiss the petition as untimely and because one claim is unexhausted, petitioner's motion to stay these proceedings, and petitioner's request for DNA testing of trial evidence. For the reasons set forth below, this court will recommend respondent's motion to dismiss be granted because the petition is untimely. This court further recommends that petitioner's motions to stay and for DNA testing be denied as moot.

BACKGROUND

After a jury trial, on October 26, 2017, petitioner was convicted on seven charges of lewd and lascivious conduct on a child. (ECF No. 13-1.^[1]) On November 28, 2017, the superior court sentenced him to a determinate state prison term of twelve years. (Id.) On June 18, 2019, the California Court of Appeal affirmed the judgment. (ECF No. 13-2.) The California Supreme Court denied review on August 21, 2019. (ECF Nos. 13-3, 13-4.)

Petitioner filed four habeas petitions in state court:^[2]

1. Petition filed August 25, 2019^[3] in Sacramento County Superior Court. The Superior Court denied the petition in a reasoned opinion on October 9, 2019. (ECF Nos. 13-5, 13-6.) The Superior Court denied petitioner's motion for reconsideration on January 13, 2020. (ECF Nos. 13-7, 13-8.)

2. Second petition filed September 3, 2020 in the California Court of Appeal.^[4] The Court of Appeal denied the petition without comment on September 18, 2020. (ECF Nos. 13-9 13-10.)

3. Third petition filed July 21, 2021 in the California Supreme Court. The California Supreme Court denied the petition on October 13, 2021 in a brief order: “The petition for writ of habeas corpus is denied. (See People v Duvall (1995) 9 Cal.4th 464, 474 [a petition for writ of habeas corpus must include copies of reasonably available documentary evidence]; In re Dixon (1953) 41 Cal.2d 756, 759 [courts will not entertain habeas corpus claims that could have been, but were not, raised on appeal].)” (ECF Nos. 13-11, 13-12.)

4. Fourth petition filed January 21, 2022 in the Sacramento County Superior Court. The Superior Court denied it on March 10, 2022. (ECF Nos. 13-13, 13-4.)

Petitioner filed the present habeas petition in this court on January 23, 2022. (ECF No. 1.) He alleges he was denied a fair trial because: (1) jurors saw him entering the courtroom in handcuffs and with a police escort; (2) evidence was not subjected to DNA testing; (3) his trial attorney failed to seek to exclude the testimony of the minor victim regarding the effects of the medication Adderall; and (4) appellate counsel failed to raise ground (1) on appeal.

Respondent seeks to dismiss the petition because it is untimely. Respondent further contends dismissal is required because the petition contains an unexhausted claim. (ECF No. 11.) Petitioner concedes that one claim is unexhausted but otherwise opposes the motion. (ECF No. 22.) Respondent filed a reply (ECF No. 24).

Petitioner seeks a stay of these proceedings to permit him to complete exhaustion of his state remedies for the unexhausted claim. (ECF No. 16.) Respondent filed an opposition to the motion to stay (ECF No. 19) and petitioner filed a reply (ECF No. 26). Petitioner also filed a document identified in the docket as a first amended petition. (ECF No. 18.) While petitioner filed the document on the standard form for a habeas corpus petition, it is apparent he did not intend to amend his petition. Rather, in that document petitioner requests DNA testing of evidence introduced at trial.

MOTION TO DISMISS

Respondent first argues the petition is untimely. Respondent contends petitioner is not entitled to sufficient tolling of the statute of limitations during his state proceedings because he unreasonably delayed filing petitions in the California Court of Appeal and the California Supreme Court. Respondent next argues that petitioner failed to exhaust ground 2. Therefore, respondent contends, the petition should be dismissed because it contains both exhausted and unexhausted claims. Because this court finds the petition should be dismissed as untimely, this court does not reach the exhaustion issue.

I. Legal Standards on Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” The Court of Appeals for the Ninth Circuit construes a motion to dismiss a habeas petition as a request for the court to dismiss under Rule 4. See O‘Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). Accordingly, the court will review respondent's motion to dismiss pursuant to its authority under Rule 4.

In ruling on a motion to dismiss, the court “must accept factual allegations in the [petition] as true and construe the pleadings in the light most favorable to the non-moving party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008)). In general, exhibits attached to a pleading are “part of the pleading for all purposes.” Hartmann v. Cal. Dept. of Corr. and Rehab., 707 F.3d 1114, 1124 (9th Cir. 2013) (quoting Fed.R.Civ.P. 10(c)).

II. Statute of Limitations

A. Legal Standards

The habeas statute's one-year statute of limitations provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

Under subsection (d)(1)(A), the limitations period runs from the time a petition for certiorari to the United States Supreme Court was due, or, if one was filed, from the final decision by that court. Lawrence v. Florida, 549 U.S. 327, 339 (2007).

The limitations period is statutorily tolled during the time in which “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A state petition is “properly filed,” and thus qualifies for statutory tolling, if “its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). “The period between a California lower court's denial of review and the filing of an original petition in a higher court is tolled-because it is part of a single round of habeas relief-so long as the filing is timely under California law.” Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (citing Evans v. Chavis, 546 U.S. 189, 191-93 (2006)); see also Carey v. Saffold, 536 U.S. 214, 216-17 (2002) (Within California's state collateral review system, a properly filed petition is considered “pending” under section 2244(d)(2) during its pendency in the reviewing court as well as during the interval between a lower state court's decision and the filing of a petition in a higher court, provided the latter is filed within a “reasonable time.”)

The limitations period may be equitably tolled if a petitioner establishes “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). An extraordinary circumstance must be more than merely “‘oversight, miscalculation or negligence on [the petitioner's] part.'” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). Rather, petitioner must show that some “external force” “stood in his way.” Id. “The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule.” Lakey v. Hickman, 633 F.3d 782 (9th Cir. 2011) (citations and internal quotation marks omitted).

In addition, the statute of limitations is subject to an actual innocence exception. A petitioner may have his untimely-filed case heard on the merits if he can persuade the district court that it is more likely than not that no reasonable juror would have convicted him. McQuiggin v. Perkins, 569 U.S. 383, 400-01 (2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). “Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing.” McQuiggin, 569 U.S. at 399. For example, the “court may consider how the timing of the submission and the likely credibility of a petitioner's affiants bear...